Plaintiff v Defendant

1 These applications relate to four proceedings, being two proceedings commenced by a surgeon Mr Braham and two by a doctor, Dr Poon. Each proceeding relates to an investment the relevant plaintiff made in a managed investment scheme, known as the "Great Southern 2006 Project" ("the Project"), which was a managed investment scheme for plantation wood lots operated by Great Southern Limited in respect of the 2006 tax year.

2 Each plaintiff has brought a proceeding against the firm of solicitors on whose advice the plaintiff alleges he relied in making the investment, and a separate proceeding against the financial advisors, one of whom at least worked in conjunction with those solicitors and on whose advice the plaintiff says he also relied. The plaintiffs allege in each of the four proceedings that the advice given by the solicitors and financial advisors was incorrect and negligently given and that, as a consequence of the plaintiff's reliance on that advice and the investment they made on the basis of it, they have suffered loss.

3 The defendant ("Ambry Legal") to the two proceedings against the solicitors ('the "Ambry Legal proceedings") is a company which formerly operated a law practice known as Ambry Legal. Mr Keith Harvey, a legal practitioner, was a director of the defendant. The plaintiff in each case has indicated an intention to discontinue against Mr Harvey personally, and each has filed an amended statement of claim that reflects that intention. Neither plaintiff has, however, yet filed a notice of discontinuance to that effect or an amended writ. As the parties have in this application treated the Ambry Legal Proceedings as discontinued against Mr Harvey I will also do so in this judgment, but each proceeding should be regularised.

4 Ambry Legal seeks on summons in each of the proceedings against it that the proceeding brought by that plaintiff against the financial advisors and the proceeding against it be consolidated. In the alternative, the summons seeks that the financial advisors be joined as additional defendants to the Ambry Legal Proceedings. The stated purpose of the application is to enable the current defendant, Ambry Legal to take advantage of the regime for proportionate liability under the Wrongs Act 1958 ("Wrongs Act"). The defences filed by Ambry Legal in each of the Ambry Legal proceedings also each plead reliance on proportionate liability under the Trade Practices Act (Cth) 1974. Neither party adverted to this in the hearing of the applications and so I take that matter no further.

5 Each plaintiff opposes the applications, both as to consolidation and as to joinder. In the alternative, each plaintiff seeks that, if the financial advisors are joined as defendants to the Ambry Legal proceedings, the Court reserve the right of the parties to seek the removal of two of the three of those financial advisors at some later point in time. This is said to be appropriate because the two financial advisors in question, Romad Financial Services Pty Ltd ("Romad") and Rory Mor Macleod Deutsch have had interlocutory judgment in default of appearance entered against them in each of the proceedings against the financial advisors.

6 The third defendant to the financial advisor proceedings, Dr Andrew Ludekens, has been served by the plaintiff in each proceeding in June 2013 and not entered an appearance. No default judgment has been entered against him. Dr Ludekens became bankrupt on his own petition in November 2013 and accordingly leave would be required to proceed further against him. His trustee in bankruptcy has been served with the summons in each of the Ambry Legal proceedings, which is necessary has it seeks consolidation of proceedings to which he is a party, and has indicated that he does not propose to participate.

7 It became apparent after oral argument had concluded that Ambry Legal had not served Mr Deutsch at a current address with the summonses and affidavits in support. Service on him as a party to proceedings sought to be consolidated with the proceedings in which the summonses were issued is necessary. As will become apparent, I do not consider consolidation to be appropriate and so the absence of service is not critical. Service of the application to join on a person sought to be joined as an additional defendant is not usually required.

8 The two Braham proceedings commenced by writ filed on 26 June 2012. The two Poon proceedings commenced by writ filed on 27 June 2012. Initially the plaintiffs were represented by different solicitors, but they are now both represented by the same firm of solicitors and (at least on this application) by the same counsel.

9 All four proceedings commenced initially by writ with general indorsement only. Although the plaintiffs were initially represented by different solicitors, the general indorsement to each of the writs in the Ambry Legal proceedings is identical, save for the different amounts invested. Similarly, the general indorsement to the writ in each of the proceedings against the financial advisors is identical save for the different amounts invested.

10 The allegations against the defendants in the generally indorsed writs are not identical as between the defendant Ambry Legal and the defendant financial advisors. This is unsurprising given their different roles. However, in each of the four proceedings, the defendants are alleged to have advised (in their respective roles) the plaintiff in relation to an investment in the Project and in particular advised that such investment would be fully tax deductible in the 2006 tax year. There are other similarities as between the general indorsement in each of the four proceedings. In each, the plaintiff alleges reliance on that advice; that the advice and other conduct undertaken by the financial advisors was negligently given or undertaken; that the advice was misleading and deceptive; that the tax deduction the plaintiff initially received after investment was subsequently denied and an amended notice of assessment issued by the Commissioner for Taxation for 2006; and that the funds invested have been lost. The plaintiffs allege in each of the four proceedings loss arising from these matters.

11 A fully pleaded statement of claim was never filed in the two proceedings against the financial advisors, none of those financial advisors having entered an appearance. An amended statement of claim was filed in each of the Ambry Legal proceedings on 13 November 2013, by the now shared solicitors for the plaintiffs. Defences were filed in each on 23 December 2013 by the solicitors for the insurer of Ambry Legal. Default judgment was entered against the first and second defendants in each of the financial advisor proceedings on 25 February 2014. The Ambry Legal proceedings have not progressed beyond an initial directions hearing and this application.

12 Ambry Legal's primary application is that the two Braham proceedings be consolidated with each other and the two Poon proceedings be consolidated with each other.

13 Consolidation is governed by r 9.12 of the Supreme Court (General Civil Procedure) Rules 2005 ("Rules") which provides as follows:

9.12 Consolidation or trial together

(1) Where two or more proceedings are pending in the Court, and -

(a) some common question of law or fact arises in both or all of them;

(b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or

(c) for any other reason it is desirable to make an order under this Rule -

the Court may order the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them.

(2) Any order for the trial together of two or more proceedings or for the trial of one immediately after the other, shall be subject to the discretion of the trial Judge.

14 The plaintiff in each case says that there is no jurisdiction under this Rule to consolidate the proceedings because the proceedings against the financial advisors are no longer "pending" as against Romad and Mr Deutsch by reason of the entry of interlocutory judgment.

15 In support of that proposition the counsel for the plaintiff relies on Gamble v Killingsworth and McLean Publishing Co Pty Ltd[1] ("Gamble") a decision of Justice McInerney. In part that case turned on whether a writ of fi.fa. had been lawfully issued on the basis of an interlocutory judgment for damages to be assessed and costs to be taxed. Damages had in fact been assessed and costs taxed prior to the issue of the writ, but judgment had not been entered for the assessed sum, and the writ was stated to be issued pursuant to the interlocutory judgment.

16 Counsel for the plaintiff has relied on the comments of McInerney J at page 173 that:

Where a plaintiff proceeds under O.27, r4, [ie for interlocutory judgment for damages to be assessed] the effect of the rule is that any judgment so entered is final as to the right of the plaintiff to recover damages (to be assessed) from the defendant but interlocutory only as to the amount of those damages. ...

17 In my view Gamble does not support the proposition advanced by the plaintiffs, that proceeding are no longer "pending" once interlocutory judgment for damages to be assessed has been entered. If anything, in my view the decision of Justice McInerney supports the contrary proposition that interlocutory judgment for damages to be assessed does not finalise a proceeding. This is put beyond doubt in my view by the words that follow the passage relied upon by counsel to the plaintiffs. In the following words McInerney J stated:

After assessment of the damages the plaintiff may turn that interlocutory judgment as to the damages into a final judgment as to damages by adding the appropriate words, [there follows reference to the rules as they then were]. ... Alternatively, he may enter his interlocutory judgment for damages as in [a particular Form] and his final judgment after assessment of damages as in [another Form].

But whichever course be adopted, the further entry must be made; it is not sufficient simply to have the assessment of damages made: ... In the present case no final judgment as to damages has been entered, ... The result is - and [counsel or the opposing party] did not dispute - that there is at the present time no final judgment as to damages and, therefore, there was no judgment for $3000 on which the writ of fi. fa. which was subsequently issued could lawfully have been issued.[2] (emphasis added)

18 In other words, the proceedings are pending and no enforcement can issue until damages are assessed.

19 It follows that I do not accept the submission of the plaintiffs that the jurisdiction to consolidate under r 9.12 does not here arise because the proceedings against Romad and Mr Deutsch are no longer "pending".

20 Counsel for the plaintiffs also submitted that r 9.12(a) was not here satisfied. Although he did not expressly identify this submission as one going to jurisdiction to consolidate, in my view it does, as r 9.12 only comes into play if, as well as the relevant proceedings being pending, at least one of paragraphs (a)-(c) is satisfied.

21 Rule 9.12(1)(a) requires that there be "some common question of law or fact" that 'arises" in the proceedings for them to be consolidated. The plaintiffs dispute that this is here shown. As I understand the submission it is not said that assessment of the loss from the same transaction does not arise in each of the proceedings under consideration for consolidation. It follows that the assessment of loss is a common question of law or fact. Counsel for the plaintiffs submits, however, that that question does not "arise" in the proceedings against the financial advisors because it is unlikely that the assessment of loss will be contested in those proceedings.

22 I do not accept this submission for the following reasons. First, even if it were the case that the defendants against whom interlocutory judgment has been entered do not participate in an subsequent assessment of damages in that proceeding, the Court must still consider the matters of fact and law put to it by the plaintiff and be satisfied that the type and quantum of loss claimed is appropriately claimed. The Court is not bound to accept whatever is claimed by the plaintiff, and must consider, even if the assessment is unopposed and so matters of fact are not challenged, if the loss claimed is appropriately claimed as a matter of law. Accordingly, I do not consider that a question of law or fact only "arises" where there is an active contradictor.

23 Secondly, the plaintiffs are inviting the Court to assume that the defendants in those proceedings will not seek to participate in the assessment of damages. The Rules require that they be put on notice of any such assessment when sought[3] and their response to such notification cannot be known with certainty in advance of the assessment itself. I consider that the assessment of loss suffered by the plaintiffs arising out of their investments in the Project is a common question of law or fact that arises in each plaintiff's proceeding against Ambry Legal and that plaintiff's proceeding against the financial advisors.

24 The jurisdictional requirements stipulated in the paragraphs to r 9.12 are in the alternative. Rule 9.12(1)(b) requires that the rights to relief claimed in each proceeding are in respect of or arise out of the same transaction. It is not disputed that this requirement is satisfied. The cause of action against the financial advisors and the cause of action against Ambry Legal both arrive out of investment in 2006 in the Project. Accordingly, satisfaction of that paragraph is in any event sufficient to establish the jurisdiction for consolidation.

25 Rule 9.12(1)(c) is the third alternative jurisdictional requirement, in addition to the requirement that the two proceedings under contemplation for consolidation be pending. It allows consolidation where for "any other reason" it is "desirable" to make an order under the Rule. In this regard Ambry Legal says it would be desirable to avoid the possibility of the plaintiffs manipulating the timing or the taking of steps in the financial advisor proceedings with a view to obtaining the maximum judgment against Ambry Legal, described in this submission as the "deep pocket" defendant. If the intention of this submission was to impute improper motives to the plaintiffs in bringing distinct proceedings and in opposing the current application, it is speculative. There is no evidence of any such improper motive. I accept, however, that it is not only desirable but essential that appropriate steps be taken to ensure the Court has before it all necessary defendants for the purpose of consideration of the proportionate liability regime that Ambry Legal wishes to invoke. That end can be achieved however, by less all-encompassing means than consolidation.

26 I turn now to the discretion conferred on the Court by r 9.12. Relevant factors in the exercise of a like discretion in the Federal Court were considered in Humphries v Newport Quays Stage 2A Pty Ltd[4] ("Humphries") and in this Court by Ferguson J in Traditional Values Management Ltd (In Liquidation) v Taylor and Others[5] ("Traditional Values Management") in which Her Honour made reference to Humphries amongst other authorities. In Traditional Values Management, Ferguson J began by quoting a passage from the Court of Appeal in Buckley v The Herald and Weekly Times,[6] in which Nettle JA (with whom Ashley and Weinberg JJA agreed) said:

Generally speaking, applications for the consolidation of proceedings are governed by two principles. First, as Young CJ said in Bolwell Fibreglass Pty Ltd v Foley, consolidating orders should very rarely be made; speaking generally, it is better to confine them to cases where several actions have been brought which might have been joined in one writ. Secondly, as was recognised by Herring CJ in Cameron v McBain, where a consolidation order is likely to expose a plaintiff to a substantial risk of real prejudice, the order should not be made.[7] [citations omitted].

27 Ambry Legal says that the guiding principle identified in Buckley v The Herald and Weekly Times is here satisfied as each plaintiff could have joined his action against Ambry Legal on the one hand and his action against the financial advisors on the other hand in the one writ. Ambry Legal also submits that the plaintiff would not be exposed to any prejudice by the proposed consolidations. As set out below, this second submission is disputed.

28 I will now consider the factors to be considered in the exercise of the discretion, as identified in Traditional Values Management. As Ferguson J referred to Humphries in identifying those factors, and counsel for the plaintiffs have not identified any further factors in Humphries itself that are relevant, I consider that to be the most convenient course.

29 The first factor there identified is whether the proceedings are broadly of a similar nature. This is conceded. The second concerns the level of overlap of witnesses as between the proceedings. The plaintiffs says that there will be little overlap because the proceedings for the assessment for damages as against the first two defendants in the financial advisor proceedings will in all probability be unopposed and so cross-examination is unlikely to be required. If indeed it transpires that assessment is sought and is unopposed, I accept that it is very unlikely that any oral evidence would be required. Nevertheless, written evidence as to the type and quantification of loss is in my view likely to overlap as between the proceeding against the financial advisors and against Ambry Legal in respect of each plaintiff.

30 The third factor concerns time savings or other efficiencies that might be achieved by a consolidation. I consider that there will be some time saving and saving of cost if there is a common assessment of loss as between the Ambry Legal and financial advisor proceedings for each plaintiff. I accept the submission of the plaintiffs that if the assessment of loss as against the financial advisors is unopposed this saving in time and cost is not likely to be considerable.

31 The fourth factor requires the Court to have regard to any procedural or evidentiary difficulties that might be encountered as a consequence of consolidation. The plaintiffs say that if the proceedings were consolidated they would each be required to prepare a consolidated pleading as against both Ambry Legal and the financial advisors, and so would be required to plead out a case against the financial advisors which they are not otherwise required to do. Counsel further submits that, to do so, the plaintiffs would first be required to set aside the interlocutory default judgment already obtained against the first and second defendants in the financial advisor proceedings. The defendant disputes that these steps would be necessary, but I accept the submission that they would be required. A consolidated pleading is the usual course following consolidation, and further pleading in respect of a cause of action that has already been subsumed by (interlocutory) judgment on liability is not appropriate, and arguably not possible. Accordingly, I accept that these would be extra steps required of the plaintiffs as that default judgment was obtained in each case on the basis of a general indorsement only. This is a significant factor in my view tending against consolidation.

32 The fifth factor identified in Traditional Values Management is any inconvenience that might be caused to the parties if they are required to participate in a consolidated proceeding or concurrent trials. The plaintiffs also rely on this factor in opposition to consolidation. The plaintiffs say on the one hand that they should not be required to postpone the assessment of their loss as against the first and second defendants in the financial advisor proceedings to the trial against Ambry Legal, which may well be some time in the future. On the other hand, the plaintiffs say that nor should they be required to undertake such assessment if they do not wish to do so.

33 In relation to the first of these submissions, nothing is currently before me to show any urgency or necessity for early determination of this loss. The plaintiffs did not take proceedings until almost at (or, if the defendant is correct, after in relation to Ambry Legal[8]) the expiration of the limitation period. Thus it is not currently shown that postponement would impose any hardship on them. That is not, however, to say that consolidation is the appropriate means to obtain such a postponement.

34 In relation to the second of these submissions, I accept that the plaintiffs should not be required to seek an assessment of loss as against the financial advisors if they do not wish to do so. Consolidation would not, however, require them to do so - it would merely require them to do so at the trial of Ambry Legal should they wish to do so.

35 The next factor identified in Traditional Values Management is consideration of the stage each proceeding has reached. The proceedings as regards each plaintiff are at substantially different stages and I consider that this is a significant barrier to consolidation. The next factor, which requires consideration of the number and nature of the issues that are not common to the proceedings, is similarly also a barrier. Liability is not an issue as against the first two defendants in the financial advisor proceedings and on current indications is unlikely to be ventilated as against the third defendant Dr Ludekens. In the Ambry Legal proceedings, by contrast however, liability is very much in issue.

36 The next factor identified in Traditional Values Management, factor (h), is whether inconsistent findings might result from separate trials. The defendant relies on this factor and submits that there is a considerable danger of inconsistent findings in relation to loss, if assessment of damages as against the financial advisors proceeds separately from assessment of damages as against Ambry Legal, assuming its liability to be established. There seems to be an internal inconsistency in the plaintiffs' own submissions in relation to this factor. On the one hand, they dispute that inconsistent findings are possible, and on the other hand say that in any event an assessment of damages in an unopposed assessment as against the financial advisors would not be binding on the judge who heard the Ambry Legal case.

37 In relation to the first of these, the plaintiffs say that the only inconsistent finding of significance could be as to credit and this is unlikely where assessments of damage as against the defendants in the financial advisor proceedings are likely to be unopposed. As noted earlier, it is premature to assert that those proceedings will be unopposed - this cannot be known until the event itself. But in any event, I do not accept the submission that the only significant danger of inconsistency is in relation to assessments of credit. Counsel for the plaintiffs submits that the only other inconsistency could arise in relation to arithmetical or mathematical calculations, the implication being that this would be a minor matter. In my view this is not the case - it is also conceivable that, depending how the case is put in each proceeding and how it is determined, different conclusions could be reached as to the types of loss as well as to quantum. In my view, there is here a real possibility of inconsistent findings as to loss, which is undesirable whatever the nature of the inconsistency.

38 The second matter identified by counsel for the plaintiffs in relation to inconsistency is that the trial Judge in the Ambry Legal proceedings would not be bound by an assessment of damages as against the financial advisors, which is ordinarily carried out by an Associate Judge. That is certainly true, but in my view supports the contention of Ambry Legal that there is a real danger of inconsistent findings.

39 The final factor identified as relevant in Traditional Values Management is the effect on the prospects of non-judicial resolution of the dispute through negotiation or mediation. Here the defendant Ambry Legal says that it could not realistically enter into meaningful negotiations or mediation without assurance that its liability would be governed by the proportionate liability regime. I accept the force of that submission, but I consider that consolidation is not necessary to achieve that end.

40 Having regard to all these matters, even assuming that the difficulties in relation to service on Mr Deutsch could be overcome, I do not consider that consolidation is shown to be appropriate. I accept that the loss each plaintiff has suffered arising from reliance on the advice of his lawyers and his financial advisors in respect of his investment in the Project should be considered as against the lawyers and the financial advisors together, to ensure no inconsistent findings and that their proportionate liability may be considered. I consider, however, that that end can be achieved by less drastic means than consolidation, and in particular by means that do not require the plaintiffs to take steps against the financial advisors that they would not otherwise be required to take, in particular pleading their full case where default judgment has already been entered.

41 The alternative application by Ambry Legal is that the financial advisors be joined as additional defendants to each Ambry Legal proceeding. Ambry Legal has pleaded proportionate liability in each of its defences, and s24AI(3) of the Wrongs Act requires that a person who is said to be a concurrent wrongdoer must be a party to the proceeding for the apportionment of responsibility as between wrongdoers to be considered. That subsection provides as follows:

(3) In apportioning responsibility between defendants in the proceeding the court must not have regard to the comparative responsibility of any person who is not a party to the proceeding unless the person is not a party to the proceeding because the person is dead or, if the person is a corporation, the corporation has been wound-up.

42 Ambry Legal relies on the mechanism for joinder provided by s 24AL(1) of the Wrongs Act which provides as follows:

24AL Joining non-party concurrent wrongdoer in the action

(1) Subject to subsection (2), the court may give leave for any one or more persons who are concurrent wrongdoers in relation to an apportionable claim to be joined as defendants in a proceeding in relation to that claim.

43 That subsection is subject to subsection (2) which provides:

(2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceeding in relation to the apportionable claim.

44 The plaintiffs oppose joinder under s 24AL on the following bases. First, the plaintiffs say the exception in s 24AL(2) applies in the case of Romad and Mr Deutsch, the first and second defendants in each of the financial advisor proceedings. The plaintiffs say that the exception applies because interlocutory judgment for damages to be assessed has been entered against each of those defendants. On this basis the plaintiffs submit that each financial advisor proceeding is "concluded" as against those defendants, and each financial advisor proceeding in is "in relation to the apportionable claim" made against Ambry Legal.

45 The second submission put by counsel for the plaintiffs in opposition to joinder is that it is said the role played by the financial advisors has not been sufficiently pleaded by Ambry Legal in its defences to show a basis for their joinder as concurrent wrongdoers. The cognate submission is put that there are at present insufficient facts before the Court on the basis of which the Court could conclude that the financial advisors are "concurrent wrongdoers", this being a pre-condition for joinder under s 24AL(1).

46 In relation to the first of these submissions, the plaintiffs say that there is no binding authority as to the significance of the prior entry of interlocutory judgment in relation to the application of s 24AL(2). The plaintiffs rely, however, on obiter observations by Evans AsJ in Suncorp Metway Limited v Panagiotidis and Anor[9]("Panagiotidis"). That judgment concerned an application by a defendant to a counterclaim for joinder of certain other persons as defendants to either the principal claim or that counterclaim pursuant to s 24AL of the Wrongs Act. The observations by Evans AsJ on which the plaintiffs rely concerned one of those persons, Villarosi, who was in fact already another defendant to the same counterclaim. Evans AsJ held that in those circumstances joinder was not necessary because the respective responsibility of the various persons said to be concurrent wrongdoers could already be considered by the Court under s 24AI(3). He held that persons who were already defendants to the counterclaim were already parties to the proceeding within the meaning of that subsection.

47 The observations relied upon concern the additional fact that interlocutory judgment for damages to be assessed had already been entered against Villarosi in favour of the plaintiff by counterclaim. That is said by the plaintiffs here to be an analogous situation to the entry of default judgment for damages to be assessed against the first and second defendants in the financial advisor proceedings. Evans AsJ observed that the entry of judgment could be treated as an election by the party entering judgment to treat the person against whom judgment has been entered as being solely responsible for the loss claimed.[10]

1. Insofar as the application relates to Villarosi (and, as it will be seen, to Kyriacou) the judgment obtained may well be another answer to the joinder application. For the reasons given above it is not necessary for me to express a concluded view on the point.[11]

49 As indicated, these observations were obiter. They are also very brief. If what Evans AsJ meant was that interlocutory judgment may mean that the s 24AL(2) exception applied (and I do not think it clear that this is what he meant), then with the greatest of respect, I am not persuaded that that is correct. I do not consider that it could be said that a proceeding in which interlocutory judgment only has been entered and damages not yet assessed is a "concluded" proceeding within s 24AL(2). I reach this conclusion firstly for the same reasons as given earlier in relation to the parallel submission put as to the meaning of "pending" in r 9.12.

50 There also policy reasons for the conclusion I have reached. The policy behind the proportionate liability regime was identified in Godfrey Spowers (Vic) Pty Ltd v Lincolne Scott Australia Pty Ltd and Ors,[12] ("Spowers") in observations made by Ashley JA who gave the leading judgment. He identified the perceived mischief to which the regime is directed as being the targeting of an insured or solvent wrongdoer amongst several wrongdoers.[13] To accept the plaintiffs' submission would be to defeat this policy. It would allow a plaintiff so minded to avoid the intended effect of the proportionate liability regime by commencing distinct proceedings against joint wrongdoers, entering judgment strategically against a wrongdoer without means and so without the incentive to defend the proceeding, and thereby prevent diminution of judgment by proportionate liability against another wrongdoer in another proceeding with means.

51 Evans AsJ in Panagiotidis cited some aspects of the judgment of Ashley JA. The aspects cited are as follows:

The reference to "any previously concluded proceeding", having regard to the repetitive references in the earlier sections of Pt IVAA to judgment, should be understood, in my opinion, as being a reference to a proceeding which culminated in judgment.

Seventh, the protection given by s 24AL(2) to a party which has been made liable by judgment is part of a regime which attempts to ensure that such a party is freed from attack - whether by the plaintiff or by a concurrent wrongdoer. So it is that s 24AJ provides that:

Despite anything to the contrary in Part IV, a defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim -

(a) cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim; and

(b) cannot be required to indemnify any such wrongdoer.[14]

52 No issue as to the application of s 24AL directly arose in Spowers, and on their face the references by Ashley J to "culminated in judgment", "liable by judgment" and to recovery of damages are consistent with my interpretation that "concluded" means concluded in all respects including as to assessment of damages. As I have indicated, I also consider my interpretation to be consistent with the policy identifed in Spowers.

53 Panagiotidis is also distinguishable on its facts from the present proceedings. Only one proceeding was before Evans AsJ in that case, and so there was no need to consider the consequences of the submission now put by the plaintiffs where distinct proceedings against joint wrongdoers have been commenced.

54 The plaintiffs submit that the question is a difficult one and so if the Court is minded to join the financial advisors as defendants to the Ambry Legal proceeding, the Court should expressly reserve their right and the right of other parties to seek their removal after fuller argument and once the facts are known at trial. Counsel for the plaintiffs says this difficult issue should not be determined on a summary basis.

55 In my view, this submission is incorrect. First, I am not persuaded that further facts are necessary to determine whether or not the proceedings against Romad and Mr Deutsch are "concluded" because of the entry of default interlocutory judgment against them. The question is one of law. Further facts will add context, but they will not change the fact relied upon, being the entry of default judgment.

56 Next, the plaintiffs have had the opportunity on this application for as full an argument as they wished to put. Counsel for the plaintiffs referred me to Spowers, and on my view that very case shows the plaintiffs' submissions to be incorrect. If further facts were required to illuminate such argument, the plaintiffs also have had the opportunity to put on affidavit material, which they have not done. Interlocutory applications are ordinarily determined on a "summary" basis i.e. without oral evidence, and I am not persuaded that this application falls into any different category.

57 In my view, the proper course is for this Court to determine the application now on the material currently before the Court. If that determination is incorrect, the plaintiffs have the avenue of appeal available to them. If circumstances change, then any party can make application pursuant to r 9.06(a) of the Rules for removal of the financial advisors if they are no longer proper or necessary parties. That rule expressly contemplates that such application may be made in the case of parties who were previously properly joined, and so in my view contemplates that application may be made without express reservation of the right to do so.

58 Accordingly, I do not consider that this first submission put by the plaintiffs is a basis for refusal of joinder of Romad and Mr Deutsch. It is not said to apply to the joinder of Ludekens, against whom interlocutory judgment has not been entered. Although Dr Ludekens is bankrupt it is properly conceded by the plaintiffs that this is not a bar to his joinder pursuant to s 24AL(1), and that leave is not required for that joinder to take place.

59 The second basis advanced for opposition for joinder by the plaintiffs is that the claim made against the financial advisors is not sufficiently pleaded by the defendants to permit joinder. In particular, the plaintiffs say that the defendant Ambry Legal has not particularised any failure by the financial advisors to take reasonable care. The plaintiffs submit that the question of joinder should be adjourned until after discovery, by which time the defendant may be able to more fully plead the basis on which the financial advisors are said to be concurrent wrongdoers. The defendant resists this application on the basis that the current pleading is adequate. I apprehend that the defendant also says that it cannot plead more facts at this time, but if amendment or particularisation is required that could occur after discovery following joinder. The plaintiffs could also seek to amend to further particularise their claims against the financial advisors.

60 The plaintiffs rely on P & V Industries Pty Ltd v Secombs ( a firm)[15] (" Secombs") in support of their submission. That was an appeal from an order of a Master. The Master had joined as additional defendants to an action against a firm of solicitors for alleged negligence in the management of a particular proceeding, the barristers the solicitors had briefed in that proceeding. The defendant firm accepted that it was required to plead in its defence against the plaintiff the material facts on which the firm relied to contend for an apportionment of liability. Judd J observed in his judgment that the plaintiff did submit on appeal that the pleading of the defence was inadequate in this regard, but noted that there was no direct challenge to the defence on that ground and nor was there a challenge to the joinder. He noted that "(t) plaintiff's singular purpose was to have the solicitors plead a case against the barristers as if a third party proceeding under the rules of court".[16]

61 In other words, I consider this case to be an offshoot of the debate that had initially occurred in relation to apportionment of liability as to whether joinder of concurrent wrongdoers should be by way of third party proceeding or joinder as an additional defendant. That debate was settled in this and other cases there referred to[17] in favour of joinder as an additional defendant where the original defendant does not make a claim for relief against the joined parties. That was the position of the defendant firm in that case, and on that basis they contended that they should not be required to plead a case against the barristers as they made no claim against them.

62 Judd J agreed. He held that the primary obligation of the firm was to plead the material facts as to concurrent wrongdoing in their defence i.e. as against the plaintiff, but the obligation "may also extend to providing the barristers with an opportunity to respond to the allegation made in respect of them and to participate in the proceeding".[18] He considered, however, that an order requiring delivery of a pleading to the barristers was not necessary at the time of their joinder- it should await any application by the barristers for directions, once served.[19]

63 The plaintiffs say that the defendants sought to be joined here are unlikely to seek pleading of the case against them, as they have not participated in the proceedings taken directly against them by the plaintiffs. I accept that that may be so. That is then said by the plaintiffs to justify or require more than was required in Secombs by way of pleading by the defendant of the facts to justify joinder of the financial advisors. I do not consider that limb of the submission to be correct. The possible lack of participation by the financial advisors does not mean that the current defendant Ambry Legal thereby incurs a greater obligation towards them, or towards the plaintiffs. I do not consider that Secombs supports the plaintiffs' contention.

64 The central proposition of Secombs is that the core obligation of a defendant seeking to join other defendants for proportionate liability is to plead the material facts as against the plaintiff in the defence. If the plaintiffs' contention is really that the case for proportionate liability is not sufficiently pleaded in the defences, I disagree, essentially because the defendant has in each defence pleaded proportionate liability as against the financial advisors now sought to be joined by adopting each plaintiff's own generally indorsed claim against those financial advisors in the proceeding that plaintiff has taken against them.

65 That generally indorsed claim in each proceeding pleads that the financial advisors advised the plaintiff in relation to the very same transaction that is the subject of the proceeding that plaintiff has taken against Ambry Legal and to the same effect i.e. an investment in the Project of a sum fully funded by a loan on the basis that the investment would be fully tax deductible in the 2006 tax year. The plaintiffs plead in the generally indorsed claim that in breach of duties the financial advisors owed to the plaintiffs, they failed to take reasonable care in providing this advice to them. Each plaintiff pleads undertaking the same steps in reliance on that advice as are pleaded to have been taken in reliance on the advice of Ambry Legal in the Ambry Legal proceedings- execution of the partnership agreement, investment fully funded by a loan, signing a guarantee in respect of the loan, and investing the tax refund received in the Project. It is also alleged by each plaintiff in each generally indorsed claim against the financial advisors that the advice was misleading or deceptive. This cause of action is also pleaded by each plaintiff in each Ambry Legal proceeding. Loss is also pleaded broadly in the same way in each proceeding against the financial advisors as against Ambry Legal, although more fully pleaded in the Ambry Legal proceedings.

66 The generally indorsed claims made by each plaintiff against the financial advisors now sought to be joined to each Ambry Legal proceeding plead the elements of the causes of action of negligence and misleading and deceptive conduct. Ambry Legal has adopted that pleading in its own defence. True it is that there is no particularisation of breach i.e. in what respects the advice given by the financial advisors was negligently given. Nor is there any such particularisation in the plaintiffs' proceedings against the financial advisors. Those generally indorsed claims have, however, been sufficient to obtain in accordance with the Rules default judgment against Romad and Mr Deutsch in each of those proceedings. If sufficient for that purpose, it is difficult to see how the generally indorsed claim could not be sufficient for the purpose of joining those very same persons to the Ambry Legal proceedings. It was the plaintiffs' choice not to more fully plead their cases against the financial advisors. They should not be able to now say that the case pleaded, as they themselves have pleaded it, is insufficient for joinder. Whether or not it is sufficient at trial is a different matter. It may be that the current defendant Ambry Legal would wish to amend their defences to more fully plead the facts by which it contends that the financial advisors are concurrent wrongdoers after discovery and before trial. That is a matter for another day.

67 In its plea of proportionate liability Ambry Legal has also pleaded reliance by the plaintiff on advice given by Lotus Capital Group Pty Ltd as well as advice given by the financial advisors in entering into the transaction the subject of the Ambry Legal proceedings, but does not seek to join that company. I was informed that company has been wound up. If that is the case, joinder is not required by s 24AI.

68 I conclude that the defendant Ambry Legal has sufficiently pleaded its assertion that the financial advisors are persons whose acts or omissions caused, whether independently of Ambry Legal or in conjunction with it, the loss or damage that is the subject of the Ambry Legal proceeding. Accordingly, I consider that the defendant has sufficiently pleaded in its defence that the financial advisors are concurrent wrongdoers within s 24AH to justify joinder.

69 In summary, I accept the submission of the defendant Ambry Legal that it is essential to join the financial advisors as additional defendants to each the proceedings against Ambry Legal so that the Court may consider the respective responsibilities of the defendants under the proportionate liability regime. I do not consider that any of the matters raised by the plaintiffs in opposition to that course have substance. I will order the joinder.

70 As indicated earlier, in addition to joinder of the financial advisors to the Ambry Legal proceedings I consider that steps need to be taken to ensure that any assessment of damages sought in the proceedings against the financial advisors proceeds either in conjunction with the assessment of loss in the Ambry Legal proceedings, to which those financial advisors will be joined, or at least without prejudice to Ambry Legal and the Court's consideration of proportionate liability. There are a number of possible mechanisms to achieve this end, and I will hear the parties as to what is appropriate. The parties should also draw orders to reflect these reasons, for further procedural steps now appropriate, and for the transfer of all four proceedings to the Professional Liability List for further directions at the appropriate stage.

[1] [1970] VicRp 22; [1970] VR 161.

[2] [1970] VicRp 22; [1970] VR 161, 172.

[4] [2009] FCA 699.

[5] [2012] VSC 299.

[6] [2009] VSCA 118; (2009) 24 VR 129.

[7] [2012] VSC 299, at [9] citing Buckley v The Herald and Weekly Times [2009] VSCA 118; (2009) 24 VR 129, at [2].

[8] Each defence pleads that the cause of action against Ambry Legal is out of time.

[9] [2009] VSC 126.

[10] [2009] VSC 126, [64].

[11] [2009] VSC 126, [65].

[12] [2008] VSCA 208; (2008) 21 VR 84.

[14] [2008] VSCA 208; (2008) 21 VR 84, [58]-[59].

[15] [2008] VSC 209.

[17] See the references at [4] to Woods v De Gabriele and Ors [2007] VSC 177 and Atkins v Interprac [2007] VSC 445.